Justices set expedited arguments for Feb. 8
The Supreme Court agreed to hear former President Donald Trump’s appeal of Colorado’s landmark ruling that he is an insurrectionist and unfit for public office.
The court set an expedited schedule for the case, with oral argument on Feb. 8. A decision could come within days or weeks of the arguments.
The widely expected move puts the nine justices at the center of a presidential election to an extent not seen since in 2000, when the court effectively decided the contest between George W. Bush and Al Gore by halting a Florida vote recount.
“Virtually everyone who studies the court expected it to take the Colorado case, notwithstanding the fact that some justices want to be perceived as apolitical,” said Lee Kovarsky, a law professor at the University of Texas. “The justices were never going to allow the Colorado Supreme Court to have the last word on presidential eligibility.”
There are several pending lawsuits, filed around the country, seeking to disqualify Trump from the November 2024 presidential election on the grounds that he engaged in insurrection by encouraging a mob of his supporters to attack the Capitol on Jan. 6, 2021, when Congress was meeting to certify President Biden’s victory in the November 2020 election.
Trump, the front-runner for the Republican Party nomination, was recently barred from the ballot in Maine on those grounds, raising pressure on the Supreme Court to weigh in and clarify his eligibility.
The constitutional provision at issue, Section 3 of the 14th Amendment, known as the “Insurrectionist Clause,” was enacted after the Civil War to keep Confederate leaders from serving in Congress. Until now, the Supreme Court has had little reason to weigh in on the scope of the provision, and in recent months lower courts have divided over whether it even applies to a former president.
The Republican and independent voters in Colorado who challenged Trump’s eligibility agreed that the Supreme Court should resolve the case.
Among the issues the justices should confront, the voters said, are whether the insurrection clause can be enforced without congressional legislation, whether the provision covers the presidency, and whether Trump “‘engaged in insurrection’ against the Constitution for purposes of Section 3.”
Trump’s lawyers made a number of legal arguments in his brief Wednesday asking the Supreme Court to rule. “In the context of the history of violent American political protests, Jan. 6 was not insurrection and thus no justification for invoking Section 3,” Trump’s brief argues.
It also cited Trump’s use of the word “peaceful” several times in his public statements on Jan. 6, 2021.
Trump further argued that Congress, not state courts, should determine whether Section 3’s conditions are met and that the president shouldn’t be classified as an officer of the U.S. for 14th Amendment purposes.
Some legal experts have predicted the high court will rule in Trump’s favor, but on narrow grounds to sidestep the central question of whether he engaged in insurrection.
In the split 4-3 decision, a majority of Colorado’s seven justices said Trump was ineligible to appear on the state’s primary ballot in 2024 because he “engaged in insurrection” on Jan. 6, 2021.
The Colorado court halted its ruling from taking immediate effect, anticipating further appellate proceedings. That means Trump is likely to be on the ballot for Colorado’s presidential primary on March 5, unless the Supreme Court rules against him before then.
Depending on how the Supreme Court grounds its decision on the Colorado case, it could put an end to efforts in more than a dozen other states to remove Trump from the ballot.
Both sides welcomed the court’s decision to hear the case. “We look forward to presenting our case and ensuring the Constitution is upheld,” said Eric Olson, a lawyer representing the Colorado voters who brought it.
In a statement, Trump’s campaign said: “We are confident that the fair-minded Supreme Court will unanimously affirm the civil rights of President Trump, and the voting rights of all Americans.”
Even before argument, politics has suffused the disqualification case. Trump has used it in fundraising appeals, and a Trump lawyer, Alina Habba, suggested Thursday on Fox News that Justice Brett Kavanaugh, a Trump appointee, would “step up” because the former president “went through hell to get [Kavanaugh] into place.”
